Challenge in this
appeal is to the judgment of a learned Single Judge of the Himachal Pradesh
High Court convicting the appellant who had been acquitted by the learned
Judicial Magistrate, Ist Class, Nurpur, Kangra. The appellant was the driver of
a bus of the Himachal Pradesh Road Transport Corporation ( in short the
'Corporation'). According to the prosecution version on 19.11.1991 while he was
driving the vehicle, the bus had stopped at a bus stop. One passenger after
alighting from the bus went to its roof top for the purpose of unloading his
luggage. The accused without waiting for a signal from the conductor and
without verifying if all the passengers who were to board, had boarded and who
were to alight had alighted, all of a sudden started the bus as a result of
which the said passenger fell down and sustained injuries. He was carried to
the hospital where he succumbed. A case was registered. On complaint of
investigation, charge sheet was filed and he pleaded innocence. He was charged
for commission of offences punishable under Sections 279, 337 and 304 of the
Indian Penal Code, 1860 ( in short 'IPC'). Eight witnesses were examined to
further the prosecution version. The trial court found that there was no
negligence and as a matter of fact there was nothing on record to show that he
had been asked to wait till all passengers alighted and/or boarded the bus. The
High Court reversed the conclusion in appeal filed by the State. The basic
stand of the State before the High Court was that the accused was supposed to
wait till he was given a signal by the conductor to do so. It was noted that
one of the witnesses stated that the conductor told the driver that one of the
passenger was still on the roof of the bus but the driver started the bus.
Accordingly, the appellant was found guilty of offences punishable under
Sections 279 and 304 A IPC and sentenced to rigorous imprisonment for six
months and fine with default stipulation.

In support of the
appeal, learned counsel for the appellant submitted that there was no evidence
on record to -3- shows any negligence. It has not been brought on record as to
how the accused- appellant was negligent in any way. On the contrary what has
been stated is that one person had gone to the roof top and driver started the
vehicle while he was there.

There was no evidence
to show that the driver had knowledge that any passenger was on the roof top of
the bus. Learned counsel for the respondent on the other hand submitted that
PW1 had stated that the conductor had told the driver that one passenger was
still on the roof of the bus and the driver started the bus.

In the
cross-examination PW1 categorically stated that he does not know who the driver
was. It is of relevance that the conductor was not examined as a witness. Section
279 deals rash driving or riding on a public way. A bare reading of the
provision makes it clear that it must be established that the accused was
driving any vehicle on a public way in a manner which endangered human life or
was likely to cause hurt or injury to any other person.

Obviously the
foundation in accusations under Section 279 IPC is not negligence. Similarly in
Section 304 A the stress is on causing death by negligence or rashness.
Therefore, for bringing in application of either Section 279 or 304 A it must
be established that there was an element of rashness or negligence. Even if the
prosecution version is accepted in toto, there was no evidence led to show that
any negligence was involved.

-4- Above being the
position, the judgment of the High Court cannot be sustained and is set aside.
The accused appellant is acquitted of the charges. The bail bonds executed to
give effect to order dated 7.10.2002 shall stand discharged.